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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Al-Azad v Secretary of State for the Home Department [2024] EWCA Civ 407 (25 April 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/407.html Cite as: [2024] 1 WLR 4486, [2024] WLR(D) 185, [2024] EWCA Civ 407, [2024] WLR 4486 |
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ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION
AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE MONSON
CASE NO. UI-2022-0023328
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE LEWIS
and
LADY JUSTICE WHIPPLE
____________________
MN WOHHAB AL-AZAD |
Appellant |
|
- and - |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Emilie Pottle (instructed by the Government Legal Department) for the Respondent
Hearing date: 16 April 2024
____________________
Crown Copyright ©
LORD JUSTICE LEWIS:
INTRODUCTION
(1) The FTT had misconstrued paragraph 322(1A) of the Immigration
Rules. The Upper Tribunal's conclusion that there was no material error in the FTT's decision was, therefore, wrong in law; and
(2) The FTT had erred in law in failing to conduct the two-stage balancing exercise required under paragraph 322(5) of the Immigration
Rules. The Upper Tribunal's conclusion that there was no such error in the FTT's decision was, therefore, wrong in law.
(1) The alleged errors are academic because the appellant has not appealed against the FTT's finding that his application did not meet the requirements of paragraph 276B(ii)(c) of the Immigration
Rules; and
(2) Even if the FTT erred in law in relation to paragraph 322(5) of the Immigration
Rules, any error was not material because any rational tribunal must have come to the same conclusion.
THE LEGAL FRAMEWORK
The Legislation
"3C (1) This section applies if -
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum andImmigration
Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), …
(c) an appeal under that section … is pending, …
(3A) Leave extended by virtue of this section may be cancelled if the applicant— …
(b) has used or uses deception in seeking leave to remain (whether successfully or not)…
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a)…..".
The Immigration
Rules
Making Applications
"Variation of leave to enter or remain in the United Kingdom
31. Under Section 3(3) of the 1971 Act a limited leave to enter or remain in the United Kingdom may be varied by extending or restricting its duration, by adding, varying or revoking conditions or by removing the time limit …
Multiple applications
34BB. (1) An applicant may only have one outstanding application for leave to remain at a time.
(2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application.
…..
Variation of Applications or Claims for Leave to Remain
34E. If a person wishes to vary the purpose of an application for leave to remain in the United Kingdom, the variation must comply with the requirements of paragraph 34 (as they apply at the date the variation is made) as if the variation were a new application. If it does not, subject to paragraph 34B, the variation will be invalid and will not be considered.
34F. Any valid variation of a leave to remain application will be decided in accordance with theimmigration
rules in force at the date of such variation.
Date an application (or variation of an application) for leave to remain is made.
34G. For the purposes of these rules, the date on which an application in accordance with paragraph 34E is made is-
…..
3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted…..".
Eligibility
"Long Residence
Long residence in the United Kingdom
Requirements for an extension of stay on the ground of long residence in the United Kingdom
276A1. The requirement to be met by a person seeking an extension of stay on the ground of long residence in the United Kingdom is that the applicant meets each of the requirements in paragraph 276B(i)-(ii) and (v). …
Requirement for indefinite leave to remain on the ground of long residence in the United Kingdom
276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) Having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his: …
(c) personal history, including character, conduct, associations and employment record; and …
(iii) the applicant does not fall for refusal under the general grounds for refusal. …
Indefinite leave to remain on the ground of long residence in the United Kingdom
276C. Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.
Refusal of indefinite leave to remain on the ground of long residence in the United Kingdom
276D. Indefinite leave to remain on the ground of long residence in the United Kingdom is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 276B is met".
Refusal of Leave
"Refusal of leave to remain, variation of leave to enter or remain or curtailment of leave
322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain …
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused
…..
(1A) where false representations have been made … in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application. …
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused
…..
(2) the making of false representations or the failure to disclosure any material fact for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave. …
(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including … character or associations …)".
THE FACTUAL BACKGROUND
The Decision Letter
"Consideration has been given to paragraph 322(1)(A) of theimmigration
rules… You have not submitted evidence to demonstrate that you were a genuine director of AH Palak involved in the day to day running of the business at the time of your application. You have not provided any evidence of a business plan to the Home Office. You provided the Home Office with a business agreement between your company and Fotik Khan. Fotik Khan is linked to the Operation Meeker fraud by its directors and by its addresses as demonstrated in our decision. You have not provided a credible explanation relating to how you obtained this business agreement and it is considered that this agreement was fabricated on balance of probabilities to make your company appear to be operating genuinely……
It is considered therefore … that false representations were made in your Tier 1 Entrepreneur application dated 17/01/13, which has been varied to your current application.
It is considered on balance of probabilities that you appointedImmigration4U
to assist in the submission of your application and in the submission of false representations in order for your application to succeed.
A refusal under general grounds 322(1)(A) is a mandatory refusal whether the false representations or documents were submitted with or without your knowledge. Nevertheless, the SSHD is satisfied that the representations and documents were submitted with your knowledge. On balance of probabilities it is considered you have failed to provide credible explanations in relation to questions asked by the SSHD, nor have you provided documentary evidence that you were a genuine entrepreneur at the time of your application."
"Accordingly, whilst account has been taken of all the known factors that would weigh in favour of granting the application, they do not outweigh the adverse impact on the public interest of allowing an application that relies on residence gained in part through dishonest conduct and false representations. The SSHD is committed to upholding high standards of conduct in the provision of evidence in support ofimmigration
applications as this is essential to the integrity of the system and overall fairness of results as between applicants.
This type of dishonesty inimmigration
purposes is a serious matter that undermines the fair administration of the
immigration
system. Such dishonesty would justify refusal under paragraph 322(5) of the Rules by reference to the public interest in principle notwithstanding the potential adverse consequences of such a refusal for the individual interest. In this instance, this type of dishonesty falls within the scope of paragraph 322(5) where the public interest requires refusal of indefinite leave to remain."
"Furthermore, consideration is also given to paragraph 276B (ii) (c) of the long residence rules under which you make your application for indefinite leave to remain. Character and conduct in the UK goes beyond criminal convictions. Having given consideration to your personal history, which includes your character and conduct in the UK, it is considered that it would be undesirable on public interest grounds to grant Indefinite Leave to Remain, and the benefits that this status would bring.
Your application therefore does not meet the requirements of 276B (ii) (c)."
"Your circumstances have been considered carefully and the positive contributions you have made whilst in the UK are admirable. However, we are satisfied that based on the information you have provided, there are no such exceptional circumstances that outweigh the deception involved in the submission of a non-genuine financial transactions and business agreements in support of your application and leave outside the rules is not appropriate".
"Summary
Taking into account the information contained within the minded to refuse letter and your responses, the SSHD is satisfied that false representations were made within your application dated 17/01/13 for leave to remain as a Tier 1 Entrepreneur, therefore a refusal with reference to general grounds paragraph 322 (1)(A) and 322 (5) is appropriate. Your application dated 17/01/13 has been varied to your current application, therefore a refusal on general grounds paragraph 322 (1)(A) is mandatory, if false representations are considered to have been made with or without your knowledge, in order to seek leave to remain. Nevertheless, I am satisfied that you were aware of the false representations being made.
Given the above, your application is refused under paragraph 276D as you do not meet the long residence requirements of 276B (ii) and (iii). It is also considered you do not meet the general ground requirements of 322 (1)(A) and 322 (5).
In all cases that do not meet the rules, we will consider whether the exercise of discretion is necessary. Your representations have been considered however the Secretary of State is not satisfied that yours is a case that should be considered for the exercise of discretion".
The Appeal to the FTT
"84. Ultimately, I find that the relevant rule is 322(1A) on the basis that the law clarifies (in respect of the application of section 3C of the 1971Immigration
Act), that there is only one application at any one time until it is decided (in simple terms), see for instance the decision of the Court of Appeal in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78.
85. Whilst it is of course true that the original Tier 1 Entrepreneur application was varied to an application for Indefinite Leave to Remain (by reference to the 10 years lawful residence provisions in 276B of the Rules) nonetheless the 'application' remains that made originally on 17 January 2013 and then eventually decided by the Respondent on 28 May 2021. On that basis the Respondent is right to say that false representations have been made in the context of 'the application'."
"90. Should I be wrong, and noting that the Secretary of State has raised 322(5) in any event, I also conclude that the discretion in 322(5) should not be exercised in the Appellant's favour. Whilst there is no dispute that the Appellant has associated himself with community groups and good causes in the UK, his knowing acquiescence in the making of false representations is a particularly serious matter in my view and does go materially to his character."
91. For the same reasons I also conclude that the Appellant falls foul of the character, conduct and association/public good requirements in 276B(ii)(c) and S-LTR.1.6 of Appendix FM. ….."
The Upper Tribunal Decision
"46. However, I do not consider that there was a material error in the Judge treating paragraph 322(1A) as being applicable in circumstances where it was not in dispute that other relevant suitability provisions were engaged, and it was agreed that, if deception was made out, the appellant's appeal fell to be dismissed. In short, whether or not paragraph 322(1A) was rightly relied upon by the respondent is academic."
47. Ground 6 is that the Judge did not follow the required two-stage process when assessing the applicability of paragraph 322(5) of the Rules. In addition to the concession to which I have referred earlier, whereby the appellant conceded that the appeal should be dismissed even if it was only the discretionary grounds for refusal that applied, the required balancing exercise was in any event performed by the Judge at [90] …..
48. At [91], the Judge said that for the same reasons he concluded that the appellant fell foul of the character, conduct and association/public good requirements in 276B(ii)(c) and S. LTR1.6 of Appendix FM.
49. In conclusion, the Judge gave adequate reasons for the findings which he made, which were reasonably open to him on the evidence, and the Decision was not vitiated by a material error of law."
THE FIRST ISSUE – THE PROPER INTERPRETATION OF PARAGRAPH 322(1A) OF THE IMMIGRATION
RULES
Discussion
"10. There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffman said in MO (Nigeria) v Secretary of State for the Home Department[2019] 1 WLR 1230, 1233 para 4:
"Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule construed against the relevant background. That involves a consideration of theimmigration
rules as a whole and the function which they serve in the administration of
immigration
policy."
… Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."
"35. The key to the matter is an understanding of how s.3C operates. I have set the section out at para 10 above. The section applies, by subs.(1), where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2) , a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending: I paraphrase the statutory language, but that seems to me to be the effect of it. During the period of the statutory extension of the original leave, by subs.(4) no further application for variation of that leave can be made. Thus, there can be only one application for variation of the original leave, and there can be only one decision (and, where applicable, one appeal). The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subs.(5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary."
THE SECOND ISSUE – PARAGRAPH 322(5)
Discussion
THE RESPONDENT'S NOTICE
CONCLUSION
LADY JUSTICE WHIPPLE
LORD JUSTICE BAKER